(dissenting).
In addition to the facts recited in the majority opinion, the record also indicates the following: Although the agreement authorized RECA to serve as exclusive agent for the sale for a limited time, was outlined on RECA letterhead, and was signed in the RECA office, there was undisputed evidence that RECA itself did not regard the matter as a real estate transaction and refused to allow its trust account to be used. The Sanvilles, at the time of signing the agreement, also delivered to Elliott a power of attorney to enable him to consummate the transaction in their behalf since they were moving out of the state.
With respect to Elliott’s testimony that he twice attempted to send the balance to the Sanvilles in the form of cashier’s checks, he said that he was unsuccessful in having the lost checks traced, so he gave the Sanvilles a personal check for the balance due to them. The bank subsequently dishonored the check, but it is not disputed that the Sanvilles attempted to cash it prematurely.
In affirming Elliott’s suspension, the trial court determined that Elliott had represented and conducted himself as a real estate broker as defined by Section 61-29-2(A) and that, therefore, the Commission had jurisdiction over him. The court also concluded that because in Sections 61-29-1 through 61-29-29, “real estate” includes leaseholds and other interests less than leaseholds, the Commission had jurisdiction over the Sanville transaction in that it involved the owner’s interest in a New Mexico real estate contract. See § 61-29-2(A). Consequently, the court concluded and the majority agrees, Elliott was subject to discipline by the Commission.
The majority opinion ignores prior decisions of this court. We have held that through the doctrine of equitable conversion, the vendor’s interest in a contract for the sale of realty is personalty. Marks v. City of Tumcumari, 93 N.M. 4, 595 P.2d 1199 (1979); Gregg v. Gardner, 73 N.M. 347, 388 P.2d 68 (1963). Thus, the Sanville transaction did not involve “real estate” as used in Sections 61-29-1 through 61-29-29, and sale of the Sanvilles’ interest was not the sale of an interest in land falling within the kind of transactions subject to the jurisdiction of the Commission.
The trial court also determined that the fiduciary relationship between the parties was that of broker and client, and that the attorney-in-fact exception of Section 61-29-2(D) did not apply. I cannot agree. Even for transactions which do deal with real estate, Section 61-29-2(D) specifically provides that Sections 61-29-1 through 61-29-29 do not apply to persons “acting as attorney-in-fact under a duly executed power of attorney from the owner authorizing the final consummation by performance of any contract for the sale, leasing or exchange of real estate.”
The majority rests its decision upon a discussion of the scope of judicial review in administrative matters. Scope of review is irrelevant if the administrative agency is without jurisdiction to decide the matter brought before it.
Under the very statutes by which the Commission was created and purported to act, the Commission lacks jurisdiction over the transaction in this case. The Commission’s arguments concerning the public policy of regulating those who sell property interests is unpersuasive because the legislature had clearly defined those persons over whom the Commission has jurisdiction as those who broker or sell real estate. See § 61-29-2(A). Those who act as attorneys-in-fact are exempted from all of the provisions of Article 29 of Chapter 61, entitled Real Estate Brokers and Salesmen. In this transaction, Elliott was not acting as a broker or salesman. I would reverse the decisions of the trial court and of the Commission and direct the Commission to reinstate petitioner’s license. I, therefore, respectfully dissent.
SOSA, Senior Justice, concurs.